The first, three counts, with variations not very material, charge the defendant with having said of the рlaintiff, in reference to the office or business in which he was employed by the Mount Yernon Hotel Company— 1. “ He has sold the property of the company, and pocketed the money.” 2. “ I know enough that he has done to send him to the penitentiary.” 3. “I know enough thаt he and Abraham Rex have done to send them to the penitentiary, and the sheriff showed me papers enough, to prove it.”
The fourth count charges the defendant with having said of the plaintiff, in his private capacity, “I know enough that he has done to send him to the рenitentiary.”
The question is, whether, admitting the facts charged in the declaration to be true, the plaintiff shows a legal cause of action.
There is-no allegation of spеcial damage. To maintain the action, the words must be either actionable per se, or, ■as to thQ three first counts, actionable by reason of their being spoken of the plaintiff in his office or business as •superintendent or director, or both, of the company.
The general rule is, that-where a person is charged with
Then 1. As to the words, “ 1 know enough ho has' done to send him to the penitentiary,” are they actionablе per se? In Brooker v. Coffin, 5 Johns. 188, the court held that “in case the charge, if true, will subject the party charged to an indiсtment for a crime involving moral turpitude, or subject him to -an infamous punishment, the words will be themsеlves actionable.” This rule was recognised subsequently in Widrig v. Oyer, 13 Johns. 124; Martin v. Stilwell, 13 Johns. 275 ; Vanness v. Hamilton, 19 Johns, 367 ; Young v. Miller, 3 Hill 22; Andres v. Koppenhœffer, 3 Serg. & Rawle 225; and Ludlam v. McCuen,, 1 Harr. 12. In Walmsley v. Russell, 6 Modern 200, words were said to be actionable per se which charge some scandalous crime; in Mayne v. Digle, 1 Freeman 16, that they must be such as impute to the party an offence for which he may be indicted ; in Turner v. Ogden, 2 Salk. 696, that they must endanger life or subject to infаmous punishment; and in Onslow v. Horne, 3 Wilson 177, that they must contain an express imputation of some crime liable tо punishment; some capital offence or other infamous crime or misdemeanor*
Now, upon the authority of these cases, I think the words are actionable per se ; for, as was said by Denman, C. J. in Read v. Ambridge, 6 Car. & Payne 308, the questiоn is, what the defendant meant to make other people-believe; and see 1 Starkie on Slander 46-7. The words,- “ I know enough he has done to send him to the penitentiary,” undoubtedly were meant to convey the impression that the plaintiff was guilty of a crime or crimes for which he might be indicted, convicted, and sent to the state prison. A crime or crimes involving moral turpitude, and punishment by imprisonment in the state prison,, is con
In Curtis v. Curtis, 10 Bingham 477, it was held that the words, you have committed an act for which I can transport you;” were actionable per se ; for, said Tindall, C. J., I cannot seе how any one who had heard that the defendant was able to transport the plaintiff could form any other supposition than that the plaintiff had been guilty of a crime. In Downids - case, Cro. Eliz. 62, the words wеre, “if you had your deserts, you had been hanged before now,” and held actionable. Sо the words, “you have done things with the company for which you ought to be hanged, and I will have you hanged before the first of August.” Francis v. Roose, 3 Mee. de Welsby 191. This disposes of the demurrer, as to the second, third, and fourth counts, for the words charged are substantially the same in each, and being actionable per se are also actionable when spoken in relation to the plaintiff’s employment.
2. Thе words, “ he has sold the property of the company, and pocketed the monеy,’’alleged to have been spoken of the plaintiff in his capacity of director and superintendent of the company, with the innuendo that he had been guilty of fraudulently dispоsing of the property of said company, and applying the proceeds thereof to his own use, form the subject matter of the first count.
It is quite well settled that words spoken of a person in his office, business, or employment, imputing a want of integrity, of credit, of common honesty, are actionable. 1 Starkie on Slander 127; McCuen v. Ludlam, 2 Harr. 12; and any lawful employment, or situation of trust, lucrative or confidential, is within the rule. The words spoken imply that the plaintiff had been guilty of a breаch of trust, had acted dishonestly, had fraudulently sold- and applied the proceeds оf the company’s property to his own use. Such, I think, is the clear purport of the words; so, I think, they were intended to be understood;
I am of opinion the demurrer should be overruled.
G seen, C. J., and Ogden, J., concurred.